Passionate about IP! Since June 2003 the IPKat weblog has covered copyright, patent, trade mark, info-tech and privacy/confidentiality issues from a mainly UK and European perspective. The team is David Brophy, Birgit Clark, Merpel, Jeremy Phillips, Eleonora Rosati, Darren Smyth, Annsley Merelle Ward and Neil J. Wilkof. You're welcome to read, post comments and participate in our community. You can email the Kats here

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Friday, 15 February 2013

Curled up in restful repose, a python could easily be mistakenfor a no-legged leather cat without whiskers ...

When is a python not a python of the sort illustrated above? When it's (i) a Python in the Montysense or (ii) a Python open source software project attached to the Python Software Foundation. And it's pythons in the second of those categories that bring the excellent Pam Chestek back in touch with the IPKat. Having experience of academe and private practice as well as working in-house, Pam has sampled most of the unimaginable delights of life in the intellectual property world -- and she has just emailed this Kat to ask a favour. She explains:

"Python is an open source software project in need of assistance -- they
are opposing another company's attempt to register PYTHON for similar
goods and services, but they have to rely on their common law rights.
They are therefore in need of evidence of the use of the PYTHON mark
throughout Europe, as explained in this [Python Software Foundation] blog post [which contains very much more background information].
Can you publicize the matter in the hope that it will help them
collect evidence?"

This Kat does not know anything further about what appears to be a Community trade mark application, the circumstances in which it is made and the extent to which the evidence of use might either strengthen or weaken the respective positions of the trade mark applicant and opponent. He does know, from years of moderating this blog, that there are a lot of open source supporters among its readers, many of whom may already have been stirred into action by the Foundation's own blog post, a smaller number of readers who are hostile to open source since they see it as a threat to the well-established order of things, and a body of readers which is larger than either and which doesn't really have an opinion, or even an interest, regarding the vices and virtues of open source.

What particularly interests this Kat, though, is the potential for the social media to affect the legal outcome of applications to register IP rights. This has been recognised in patent law, where the Peer-to-Patent project [extensively covered by this weblog here] has been piloted, trialled, tested and generally placed under a sceptical microscope and has emerged with some credit. But there don't appear to be trials of equivalent systems for harnessing the power of the public to assist granting offices in unearthing evidence of the nature and extent of prior use, reputation and other objectively assessed evidence.

Has the time come to involve the public more in the grant, opposition and revocation/cancellation processes of trade mark law? Might this save examiners and courts the effort of second-guessing how the public view marks as well as the extent of use? What do readers think?

7 comments:

... or even google? Putting "python" into google.co.uk gives the first 4 hits for the programming language and the majority of the first page is python (the language) not python the snake or python the comedic grouping.

I think the problem with crowd-sourcing is that it works well for a really famous mark - and "python" is really famous in the programming world (its an incredibly popular language - I remember first using it back in my pre-lawyer days and thinking how wonderfully easy it was to use). A word or other mark that is really well known internationally among a large constituency of people is amenable to this sort of treatment. But in that case the trademark office ought to trivially (see google above) be able to discover that fact.

For less well known marks? I don't know. Setting up a "please tell us" site as for peer-to-patent might not work. Engaging social media in general in some more interesting way, might.

I wonder if evidence from European universities might be useful - a quick search showed that Cambridge runs course on Python: http://www.ucs.cam.ac.uk/docs/course-notes/unix-courses/PythonAB

Similarly the BCS has at least one Python User Group (http://www.bcs.org/content/conEvent/6628) and has had various events relating to Python over the years (http://www.bcs.org/content/conWebDoc/16692 for example).

In an ordinary business, the trademark owner will be able to directly contact its distributors, resellers, and subsidiaries to obtain the needed evidence. What's interesting in the open source trademark context is that there isn't necessarily contact between the trademark owner and those using the software (not to mention an open source community is a much less organized entity altogether), so it is more challenging to locate this type of evidence.

Python is a large, well known and very widely used piece of software (it is included in Apple's MacOS, most other Unix/Linux operating systems, runs millions of websites (including any large ones, etc.) and was released in 1994.

It should not be possible for a trademark application on a name like this to be a serious threat that people have to spend time and money countering.

I am also slightly stunned by your mention of readers hostile to open source. I can understand anti-open source marketing by businesses selling proprietary software, but what grounds do people have for genuine hostility? A near Leninist belief in centralised control?

Graeme said: "I am also slightly stunned by your mention of readers hostile to open source. I can understand anti-open source marketing by businesses selling proprietary software, but what grounds do people have for genuine hostility? A near Leninist belief in centralised control? "I can only imagine this is similar to the hostility seen from some to Creative Commons. I assume the thought process is that if people start giving stuff away for free, it will undermine the argument for retaining/strengthening IP rights for others. So probably less Leninist and more naked capitalism.

In response to the writer's suggestion of involving the public in trade mark procedures, I would say that we need to be a lot more critical about the wisdom of the 'crowd'. I think more and more we can see that, for example, 'crowdfunding' is essentially a way of duping naïve investors. The general public contains a lot of people who are inevitably not objective or not properly informed on particular issues. Anyone taking data from the crowd must be very mindful of that, so that 500 emails to an Examiner as to why Nike do not deserve a particular mark should not influence the Examiner in carrying out a proper examination. We've seen the scandal with fictitious twitter followers being available for purchase, and so we need a very cautious approach to the way we tap into the potential of the crowd for IP matters.

... or even google? Putting "python" into google.it gives first 10 results related to the programming language (the whole first page, I don't know about the second). (nothing about storage service or Monty Python).Obviously if you search for "pitone" you get only results about the reptile.